A Companion to the History of the Book (93 page)

In the second half of the seventeenth century, these underlying questions became both more urgent and more complicated. The Stationers’ Company’s control of the trade broke down, along with the royal authority which had created and sustained it, from 1640 onward. Yet throughout the English Civil War (1642–6) and the republican regimes which followed the execution of Charles I (1649), the book trade continued to function. Economically, it went through bad times, but copies and shares in copies were still traded, and at least some of the transactions were recorded in the Register. When the monarchy was restored in the person of Charles II (1660), there was an understanding within the trade that the pre-1640 rights were intact and enforceable, and that any properly recorded transactions between 1640 and 1660 were legitimate. Indeed, the authority of the Company and its system for protecting rights was to receive an unexpected boost by being brought into the sphere of statute law for the first time. The Printing Act (sometimes called the Licensing Act) of 1662 was primarily designed to institute a new system of prepublication censorship which was secular rather than ecclesiastical in intention and implementation. But it also required entry in the Stationers’ Register of books that were licensed; this gave a new force and significance to the Register itself, which now became a statutory record. This legislation was allowed to lapse in 1672, but it was revived in 1685 and renewed again in 1688 and 1693. However, when it was next due for renewal in 1695, it seemed less attractive. The Glorious Revolution (1688) had deposed James II, and the new system of government was essentially a constitutional parliamentary monarchy with embryonic political parties. Prepublication censorship came to an end.

The problem for the trade after 1695 was how to protect a hundred years of investments in rights in copies. A group of copy-owning booksellers and their business associates petitioned for a renewal of the Printing Act, but parliament would not hear of it. In 1707, the booksellers changed their tack, and asked for what they actually wanted – protection for rights in copies. They got their way, and in “An Act for the Encouragement of Learning” rights in copies were formally recognized in statute law for the first time. The 1710 Copyright Act is a milestone, but it was also a millstone. It was imprecise and ambiguous. It appeared to give protection to all existing copies for twenty-one years, and to new copies for fourteen years with the possibility of renewal for another fourteen, but exactly what this meant was only imperfectly explained. For more than sixty years, the trade, the authors, and the courts in both England and Scotland argued about exactly what the Act meant. Eventually, in the leading case of
Donaldson
v.
Becket,
the House of Lords determined in 1774 that the Act meant what it said: rights in copies subsisted for a period of twenty-eight years, and thereafter they were in public domain. During these long and complicated legal developments, two crucial principles were identified and developed: authors’ rights and public domain.

Legal protection for the rights of authors was embedded in the 1710 Act. Its title indicated that its purpose was – in the broadest sense – to encourage learning and, by implication, the learned. The clear assumption in the Act was that authors originated the rights that were being protected. Within a few years, some authors were beginning to assert those rights. Most notable among them was Alexander Pope, who used the formidable power of his popularity to manipulate his dealings with the book trade to his own advantage. Not every author could emulate Pope, but by the middle of the eighteenth century authorship in England was established as an occupation (albeit not a particularly respectable one) from which it was possible to make a living. Copyright law underpinned this, both by recognizing that an author created a piece of property at the moment of composition, and by protecting the investment of whoever bought or leased that property from the author in order to put it into printed circulation.

Public domain was, in its way, an equally important concept. Just as the recognition of authors’ rights began to deal with the question of where the property embodied in copyright originated, so the development of the idea of public domain answered the question that hovered over the other end of the process: what happened to time-limited rights when the period of protection expired? Indeed, the whole English legal controversy from 1731 (when the twenty-one-year rights expired) to 1774 could be argued to have revolved around this issue. The eventual resolution, which flowed from the Lords’ decision in 1774, was that these rights were owned by no one and therefore by everyone. In other words, anyone could print a book which was no longer protected by copyright. This opened up a whole new field of highly competitive publishing – the reprint series whose modern descendant is to be found in paperback editions of the classics – and forced the development of a new kind of entrepreneurial publishing in which practitioners sought new titles to replace those that they no longer controlled.

By the end of the eighteenth century, British law and practice had developed a notion of copyright that was far removed from the rights and privileges that were granted by early modern states and churches. While the early privileges were essentially mechanisms of control that happened to confer some commercial benefits, British copyright had evolved in way that enabled the operation of a purely commercial device that could be exploited by authors and publishers alike. Subsequent legislation reinforced this perception and the relationships that grew out of it. In 1814, and even more forcefully in 1842, new legislation fully acknowledged both the position of the author and the consequences of the time-limitation on copyrights. The 1842 Act even gave some protection after an author’s death, for the benefit of his or her family or other copyright owner. This provision,
post mortem
copyright, was strengthened in the 1911 Copyright Act, which gave protection for fifty years after the author’s death, extended in the 1990s to seventy years in line with European Union legislation.

British developments were of international importance in the longer term, but there were other approaches. In continental Europe, there were few developments of any significance until after the French Revolution (1789). Thereafter, in successive constitutions and legislation derived from them, there was protection for authors’ rights, including the development of the concept of
droit moral,
the author’s “moral right” to control the use made of his work even after he or she had sold it to a publisher. This principle was not to be incorporated into British law until 1988. Article I of the United States Constitution gave Congress the power to make copyright legislation “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” a power which it exercised in the first federal Copyright Act (1790). Although this was derived from the 1710 British Act, it actually took account of the later eighteenth-century developments and interpretations of the law in Britain, and had a strong focus on authors’ rights. Subsequent American legislation, up to and including the 1976 Act (still in force), gradually extended the provisions, including the fifty years of protection after the author’s death. In both Europe and the United States, the tendency has been to give greater emphasis to authors’ rights.

An important nineteenth-century innovation was the development of international copyright law. From the mid-1830s onward, a number of European states passed domestic legislation that empowered their governments to make treaties with other states that would provide mutual copyright protection. The relevant British legislation was in 1838, and the first treaty was signed with Prussia in 1846. Gradually, a network of bilateral treaties developed between the European powers, including, in Britain’s case, extensions to colonies (which were included in the provisions of the 1842 Act). In 1886, largely in response to an initiative by various groups representing authors, five of the major European powers came together in Berne to negotiate a more general treaty: the following year the first Berne Convention came into force. In brief, its effect was (and is) to give protection to copyrights owned by authors resident in any signatory state in all other signatory states as if they were resident there. Thus, if the term of protection differs between countries (as it often did until European legislation was standardized in the last quarter of the twentieth century), protection was afforded in terms of the laws of each country, regardless of the nationality or place of residence of the author.

The Berne Convention did not, however, deal with a running sore that was of particular concern to British authors and publishers. The United States was invited to Berne in 1886, but took only observer status. Not until 1891 did it have domestic legislation that gave some meaningful protection to foreign authors, and even then Congress had passed the Chace Act only reluctantly and after decades of argument. Essentially, the concern was to protect the American printing industry by requiring books copyrighted in the United States to be produced there; there were also complex rules about whether the book was first published in the US or abroad. The effect was to make it almost impossible before 1891, and difficult thereafter, for a foreign author or publisher to gain any kind of copyright protection. To the Europeans (and particularly the British), this was piracy – illegal reprinting; to the Americans, it was free trade. It was not until 1976 that the US became a full member of the international copyright family. By that time, virtually every other country in the world was a signatory of Berne and of the rather less onerous International Copyright Convention developed by UNESCO. The last major gap in the international copyright protection system was plugged by the accession of China to the Berne Convention in 1990–1.

The importance of the legal history of copyright lies in the effect that it has had – and continues to have – on the practice of authorship and publishing. The first glimmerings of the rights of authors can be found in the
de facto
recognition that they were creating marketable products. It is arguably anachronistic to speak of authors’ rights in early seventeenth-century England, but there is no doubt that at least some authors considered that they had them, and sought to use whatever influence they might have for both commercial and literary ends. The early eighteenth-century authors who began to exploit their rights were building on this tradition, which was at least partly embodied in the 1710 Act. In the mid-eighteenth century, however, the English and Scottish legal controversies – which are central to the formal evolution of the law of copyright – took comparatively little account of authors. In historical retrospect, it is as if two parallel sets of developments were taking place. While the lawyers were arguing on behalf of the booksellers about the meaning of the law, the authors – or at least the more enterprising of them – were using their position as the primary producers of an increasingly popular and valuable commodity to create a better income for themselves. The normal practice was still to sell the “copy” to the bookseller who was to publish it, usually in return for a one-off payment, although by the end of the eighteenth century there are examples of authors who negotiated what we would now call reprint rights and other sources of continuing income.

The clarification of the law in 1774 was the proximate cause of revolutionary changes in the book trade in Britain. Publishers were forced to be more entrepreneurial: they had to rely less on their backlists and more on the risky business of publishing new books. The demand for such books was incessant and increasing, offering obvious openings for authors. The first generation of entrepreneurial publishers, in the 1780s and 1790s, were active commissioners of books. This was especially true at the popular end of the spectrum where, for example, the Noble Brothers and the Minerva Press published hundreds of Gothic novels for the circulating library market. For a few authors, this created real wealth; for many more, it generated a steady stream of income. These authors included many women, a significant development in itself. Anonymous or pseudonymous authorship protected the respectability of middle-class women who preferred not to bring themselves to public attention; at the same time, writing was something a woman confined by the social conventions of the period could actually take on as an intellectual occupation. Jane Austen and Fanny Burney stand out from the crowd, but there were scores of writing women in the late eighteenth century who began to gain some economic independence from their fathers, husbands, and brothers.

By the end of the second decade of the nineteenth century, the economic potential of successful authorship was very clear. Authors were identifying themselves as a community, and were beginning to press for their economic and cultural rights. An author could make a publisher’s fortune, as Scott did for Constable. At the same time, a publisher could make a fortune from the work of many writers producing cheap fiction, popular nonfiction, and (increasingly so as the century wore on) articles for general interest and literary magazines. The British Copyright Act of 1814 and its successor in 1842 both acknowledged explicitly the role of the author in the process. The American Constitution had recognized authors’ rights since its ratification in 1788. In continental Europe, the system of grants of privileges survived until the end of the
ancient regime,
but after 1789 authors’ rights were rapidly adopted.

By the second quarter of the nineteenth century, the practice of selling copyright to a publisher was beginning to be replaced. The first stage was the system of “half-profits”: author and publisher took an equal share of the profits once the costs of producing the book had been met. This was certainly more equitable from the author’s perspective, although an unscrupulous publisher who was less than frank about his financial affairs could all too easily hoodwink an author with little business acumen. Half-profits and outright sale (the latter usually for commissioned work or for periodical journalism) continued in parallel throughout the middle decades of the century. In the 1880s, however, writers became more assertive. The Society of Authors, founded by the novelist Walter Besant in 1884, became a major player in the British publishing world and on the international stage. Along with its continental counterparts, especially the French Société des Gens des Lettres, it lobbied for the adoption of the Berne Convention. In the 1890s, it was a partner in negotiations with publishers and booksellers which led to the Net Book Agreement, which provided the formal framework for the operation of the British book trade for almost the whole of the twentieth century.